Worthington v. . Coward

Aveky, J.: The late statute (Laws 1889, ch. 253) does not in terms repeal section 1298 of The Code, and there *291 fore leaves in operation such of its provisions as are not repugnant to the subsequent enactment. The Clerk, upon the hearing of the report, of the commissioners appointed to lay off the ditch described in the petition, on exceptions filed thereto by four of the petitioners, declined to hear evidence offered by said parties on the ground that he could not “ legally hear the proof and testimony so offered,- it being a matter for the committee,” and that there was sufficient matter found by said committee to enable' the Court to proceed to judgment. It seems to us that this report is to be treated, for some purposes at least, just as that of a referee made to the Superior Court would'be. Railroad v. Phillips, 78 N. C., 50; Railroad v. Parket, 105 N. C., 249. But, in any view of the question, the Judge had the same power as if the report had been submitted directly to him, and might, without explicit authority conferred by the statute, set it aside either in his discretion or for cause. Skinner v. Carter, 108 N. C., 108; Bushee v. Surles, 79 N. C., 51. The report being submitted directly to the Clerk, acting for the Court, he had the power to re-refer the matter to commissioners for a fuller report, upon the ground that it was in his opinion not sufficiently full as to the dimensions of the ditch, the benefits to the parties, or the area of drainage to enable him to pass upon the objections to it intelligently. He might, in the exorcise.of a sound discretion, have heard or declined to hear affidavits or evidence offered only for his own enlightenment, but it was error to refuse to hear the witnesses on the ground that he was not authorized by law to do so. Hanes v. Railroad, 109 N. C., 492; Skinner v. Carter, supra. Having-waived all claim, if any existed, to a trial by jury when no objection was made to the appointment of commissioners, the parties whose lands were condemned liad a right to appeal to the discretion of the Clerk first, and then of *292 tho Judge, either without examination of witnesses, on the ground that the report should have set forth more fully the facts in order to an intelligent exercise of the discretionary power, or, after hearing testimony or affidavits, to have the report set aside and the matter in controversy re-referred to the commissioners. The express power given in the statute in reference to condemning land for the use of railroad companies is merely declarator)' of the right that already existed. Railroad v. Phillips, supra; Skinner v. Carter, supra. For the reasons given we think that the Judge had the power to reverse the judgment of the Clerk because of the erroneous view of the law upon which the latter acted, or in the exorcise of a sound discretion, if in his ojmiion the ends of justice required that course to he pursued. No Error.